I have a situation where an officer stops (good stop)Defendant for PC, then develops Reasonable Suspicion during the stop. He asks the Defendant for permission to search, gets a "no", then tells Defendant that he (the officer) is going to get a dog to search and that the Defendant is under detention based on RS. So, whether he is detained or not is NOT a question. But, is it coercive by telling him that since he said "no" that a dog is going to be called?
I guess I'm not clear - does suspect then give consent based on that? I think that would be just one factor (similar to the threat of obtaining a warrant where one is justified) in determining whether consent is valid (as well as the length of the detention, among other things). If there's no consent, then what is the defense alleging was coerced?
Sorry. Forgot the details. Consent was then given. the ONLY issue being fought is, "is it coercive to 'threaten' to use a dog to search"?
I know there is some case law on this but I could not find it.
John - I think you are good to go. See, e.g., Walsh v. State, 743 SW2d 687 (Houston, 1987). Merely telling a defendant what, by law, the officer was allowed to do does not make the subsequent consent coercive. In Walsh, the defendant consented after a dog actually alerted on her luggage. I think telling a person you are getting the dog is of lesser consequence, if the stop and continued detention are good. There are more cases out there. Gimme a call if you have more problems!I am having hell editing this message......
It has been a while since I was in K9 School but this was covered and it was highly discouraged due to the possibility of it being considered coercive. My recommendation- locate a K9 handler school that reports training to TCLEOSE. They should go over case law as well as arrest search and seizure and would most likely have access to cases.
My understanding from when i was a K9 officer was that if threatening, "if you don't give me consent, i will call a K9" can be questionable, whereas asking consent and getting a no, followed up by "then i will be calling a K9" is different if they then give consent. but the biggest concern i continually read is, is there in fact a K9 available. For some time, i was the only K9 in the county and prior to my time of such, there was no K9 option, so threats of calling K9 were baseless, along the lines of threatening "i will just get a warrant", when no PC is present
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